The Supreme Court knows its scope during COVID-A response to Sri Dushyant Dave, Sr Advocate

The Supreme Court knows its scope during COVID-A response to Sri Dushyant Dave, Sr Advocate  

Sr Advocate, renowned jurist, human rights activist, vocal crusader of rights, Sri Dushyant Dave was “speaking on the subject of ‘Role of Judiciary in a pandemic’ organized by the All India Lawyers Union.’ His statements were published in Bar and Bench where he assailed the Supreme Court for abdicating its constitutional obligation during the pandemic. His statement has been reported here-- (https://www.barandbench.com/news/covid-19-pandemic-judges-have-singularly-failed-in-holding-the-government-accountable-since-the-last-8-weeks-dushyant-dave)

His argument has five significant points and sixth point is my comment. 

1. “Nation-wide lockdown was imposed at a mere four hour notice”. 

A notice of one week, 3 days, 1 day--what could have been an alternative. Is he conscious what chaos it would have created on the road, railway station at every place, Bus stand, etc? We have already witnessed the problem in Ghaziabad and Mumbai. We already lost around 300 guest (migrants) workers.  

2. He says- “Constitution framers really wanted that the Judiciary must supervise and control both, the executive's actions and inactions”. Did the Constitution framers really want that the Judiciary must supervise and control both, the executive's actions and inactions--”control” and “supervise”. Which debate of the Constituent Assembly he is referring to? This idea of “control” is inconsistent with the principle of Separation of Power and provision of the constitution, (like article 50. Separation of judiciary from executive.—The State shall take steps to separate the judiciary from the executive in the public services of the State.)
3. His another allegation is --“But the Judges, I am sorry to say, have either never read the Constitution or if they have read the Constitution, they are not willing to follow the Constitution.” And Judiciary appears to be "singularly and systematically compromised." Dave said. 

Has it been rightly reported? If, so. This statement indicates how sweeping generalisation a responsible senior advocate can make. If a similar statement is made by a judge against a lawyer, the Bar will convene a meeting, call for boycott or go for strike. He is enjoying his free speech and while enjoying he is transgressing the moral and legal limits. 

4. He says that failure of judiciary reminds like failure during emergency and the time of the case of ADM Jabalpur. This fashionable argument has been made so many times in the last few years that it has lost its force.  
5. His next argument is-- “Various High Courts in the country that have many outstanding Judges are remaining silent and not passing orders with the apprehension that any order passed may be overturned by the Supreme Court the next day at the request of the government.” The fear of overturning a decision will not deter an “outstanding judge” to pass an order. Every year many decisions are passed by HCs and many of them are overturned. This is a specious argument. 
6. Dushyant Dave is very well aware of the jurisprudence of judicial review and I am a law man of little academic merit before his towering personality. However, sometimes under certain compulsions even best of the brains cannot appreciate time honoured principles of law. This is called Gandhari blindness. Dushyant Dave is advancing a “rights” based argument which is valid in “normal” or “ordinary” times. Everyone acknowledges that the time for the last few months is not normal. We are facing an invisible enemy called as COVID19. The planet and so our country, is facing grave threat to humanity, like never before in this scientific age. This is not normal but abnormal time. This is not ordinary but an extraordinary time. The principle that directs judicial review in these times is not “rights” (R)based review but “rights with responsibilities” (RwR) based review. Greater deference to the government during extraordinary times is an established principle of constitutional jurisprudence. One may see the precedents in the USA or UK during extraordinary times. The US Supreme Court has upheld the decision of the Government most of the times when the country was facing an enemy. Be it World war [Schenck v. United States. 249 US 47(1919), or cold war or war against terrorism [Kerry v. Din, 576 U.S. (2015) Humanitarian Law Project, 561 U. S.(2010)]

Holmes, J. presented his reasoning for a conservative approach in the case of Schenck v. United States. 249 US 47(1919) as under:  

when a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right. [Emphasis Added]

This is a war against COVID which is beyond the shadow of doubts. Something that is permissible constitutionally during normal times may not be permissible when the time is difficult. During difficult times it is not wise for the court to look behind the exercise of the government's discretion or to test it by balancing its justification.  The deference applied to during COVID situations is considerably greater than those applied to other cases. Therefore, the Court cannot inquire beyond what is expressly available in the text. Among the possible standards of review, the courts may adopt either a de novo standard or a deferential standard. Deferential standard believes in presumption of constitutionality because it reposes confidence that the lawmakers would not make a law which is contrary to the constitutional principles and policy. De novo standard does not believe in the presumption of correctness. It may go beyond the text to examine the sufficiency and correctness of decision. This is the area where PILs, suo motu actions get wide recognition with heavy and adverse directions against the government. Once the situation will be back to normal (or new normal) the courts will be obliged to examine the correctness of decisions and justified in making fishing inquiry to preserve, protect and promote fundamental rights. Let us have patience. It is not that the judiciary has not committed blunders. There are many. (AN Ray case, ADM Jabalpur, Mathura rape case, PV Narasimha Rao etc). But a low profile judiciary during Epidemic is a correct approach especially when the decisions of the government to deal with COVID19 are largely accepted by political actors at center and State. The judges of the Supreme court and the High courts have very well read the constitution and are conscious of their scope of judicial review during difficult days of pandemic. Dushyant Dave sir, “while the nation is at war, serious, abrasive criticism ... is beyond constitutional protection.” It is better if we go and reread the jurisprudence without prejudices and bias.